By the 'Court.
McDonald, J.
delivering the opinion.
[1.] The motion in arrest of judgment ought not to have been sustained, and in our judgment the Court below committed no error in overruling it. The twelfth section of the fourth Article of the Constitution does not define what shall constitute the murder of a slave, but only declares that the maiming or killing a slave, shall be established by like proof, and subject to such punishment, as in case the same offence had been committed ou a free white person. It is restrictive of the power of the Legislature. The exception does not alter the case. That is permissive to the Legislature. If a slave be killed in a state of insurrection, or if the death should [555]*555happen by accident in giving the slave moderate correction, the Legislature may mitigate the punishment, or relieve the accused party from all punishment. The statesmen contemporary with the Constitution construed that provision of the Constitution as we do, and passed an act to carry it into effect. Cobb 982. It has never been held that, in indictments for the murder of a white person, after charging the offence in the usual manner, there must be negative averments, that it was not done in self-defence, and that the danger was not so urgent and pressing at the time of the killing, as to render it absolutely necessary, to save his own life. This is a separate section of the Penal Code. Sec. XV. Cobb 785. This must come in as a matter of defence. So in the case of killing a slave. If murder be charged, and the killing was justifiable under the law, it must be brought in by way of defence.
“If a clause of exception contained in the same statute, excuses a person under such and such circumstances, or gives license to persons so and so qualified, so as to excuse or except them out of the general prohibitory words, that must come by way of plea or evidence, that the party is not within such general prohibition but excepted out of it.” Rex. vs. Pemberton, 2. Bur. 1036. That case was.an indictment for exercising the occupation of a tanner, not having served an apprenticeship therein for seven years. The defendant contended that the statutes allowed certain persons to exercise the trade without having served such apprenticeship, and that the indictment ought to specify the qualifications of such persons, and to show that the party is not within any of them. The principle is the same.
[2.] The indictment charges that the offence was committed in that portion of the county of Baker which is now the county of Dougherty. The place where the homicide was committed, is in the county of Dougherty; the plaintiff in error was indicted in Dougherty county, and he was tried in Dougherty county, but it so happens that at the time of the [556]*556commission of the offence, there was no Dougherty county, that it has been laid out since; and that within its defined boundaries is the place at which the homicide was committed. It was in the county of Baker before. We think that it is sufficiently charged in the indictment that the offence was committed in the county of Dougherty. The defendant could not have been prosecuted in the county of Baker, at the time the indictment was found; for the territory on which the alleged offence was committed, was no longer in the county of Baker. The Constitution fixed the place of trial, for the benefit of defendants or parties accused, in the county where the offence was committed, as the locality at which he could most conveniently secure the attendance of witnesses. The change of the name of a county cannot operate to his detriment in any way, nor can the change of a county line.
[3.] The two first grounds in the motion for a new trial are disposed of by what we have said on the motion in arrest of judgment. But we will say additionally that the objection to the indictment ought to have been made by demurrer in writing, at the arraignment, before plea pleaded. It was too late afterwards. See case lately decided at Savannah, Thomasson vs. State of Georgia. Motion for a verdict for a defect in the indictment is, in effect, a demurrer.
[4.] This Court has held that under the Act of 1856, the presiding Judge is the trior of the competency of jurors. Reid vs. The State, 20. Ga. Rep. 688. The third ground in the motion for a new trial was therefore properly overruled.
The juror Robert Bears was examined as to his competency. His evidence was fully heard, and he was pronounced competent by the presiding Judge, who was the trior, whose judgment, we are not prepared to say, was such as to call for our interference. Costly vs. The State, 20. Ga. Rep. 629.
[5.] Daniel Harriett the juror was asked before the statuary oath was administered, in regard to his birth place, and he replied that he was born without the limits of the United States. It was no evidence of disqualification if he was not [557]*557born withm the limits of the Untied States.- If he was a free white male citizen of tire age of twenty-one years he had one of the qualifications of a juror. Acts of 1855 4- 1856, 229.
If a person be drawn from the jury-box, or summoned by the Sheriff as a tales juror, he is presumptively a qualified juror. The Sheriff is not to be presumed, to have returned a disqualified person; but if a person not qualified, shall be returned on a jury, he shall be discharged on the challenge •of either of the parties and proof thereof; or on the juror’s •own o^th. Cobb 546. The juror answered that he was born out of1 the limits of the United States; but that, did not overcome the presumption of qualification, for his return on the panel of the jury implied that, if he was born the subject of •another government, he had been naturalized here.
[6.] That the last panel put. on the prisoner, consisted of forty-seven instead of forty-eight jurors, does not entitle him to a new trial. The prisoner was entitled to a list of the jury, who are to be called over before they are put on him, and it is his own fault, if the juror does not answer to .his name, that he does not insist on his being brought into Court, or if that cannot.be done, that his place be supplied. In this case the prisoner lost nothing, for the juror was set aside for cause.
[7.] In the charge of the Court to the jury that “it made no difference, whether the owner of the slave furnished the instrument with which the killing took place or not,” there is no error. If the owner furnished the instrument to the •prisoner for the purpose of killing the slave, instead of exculpating him, or mitigating his offence, it would have made the master accessory to the crime. Almost every master who employs a manager furnishes him with an instrument for giving moderate correction, to be used if necessary for self-protection, but he never intends that it shall be used for inflicting cruel.and unreasonable punishment.
[8.] We think there was no error in admitting the evidence [558]*558of the prisoner’s striking Spencer. Spencer was the father of the girl who had been whipped. He witnessed the cruelty.
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By the 'Court.
McDonald, J.
delivering the opinion.
[1.] The motion in arrest of judgment ought not to have been sustained, and in our judgment the Court below committed no error in overruling it. The twelfth section of the fourth Article of the Constitution does not define what shall constitute the murder of a slave, but only declares that the maiming or killing a slave, shall be established by like proof, and subject to such punishment, as in case the same offence had been committed ou a free white person. It is restrictive of the power of the Legislature. The exception does not alter the case. That is permissive to the Legislature. If a slave be killed in a state of insurrection, or if the death should [555]*555happen by accident in giving the slave moderate correction, the Legislature may mitigate the punishment, or relieve the accused party from all punishment. The statesmen contemporary with the Constitution construed that provision of the Constitution as we do, and passed an act to carry it into effect. Cobb 982. It has never been held that, in indictments for the murder of a white person, after charging the offence in the usual manner, there must be negative averments, that it was not done in self-defence, and that the danger was not so urgent and pressing at the time of the killing, as to render it absolutely necessary, to save his own life. This is a separate section of the Penal Code. Sec. XV. Cobb 785. This must come in as a matter of defence. So in the case of killing a slave. If murder be charged, and the killing was justifiable under the law, it must be brought in by way of defence.
“If a clause of exception contained in the same statute, excuses a person under such and such circumstances, or gives license to persons so and so qualified, so as to excuse or except them out of the general prohibitory words, that must come by way of plea or evidence, that the party is not within such general prohibition but excepted out of it.” Rex. vs. Pemberton, 2. Bur. 1036. That case was.an indictment for exercising the occupation of a tanner, not having served an apprenticeship therein for seven years. The defendant contended that the statutes allowed certain persons to exercise the trade without having served such apprenticeship, and that the indictment ought to specify the qualifications of such persons, and to show that the party is not within any of them. The principle is the same.
[2.] The indictment charges that the offence was committed in that portion of the county of Baker which is now the county of Dougherty. The place where the homicide was committed, is in the county of Dougherty; the plaintiff in error was indicted in Dougherty county, and he was tried in Dougherty county, but it so happens that at the time of the [556]*556commission of the offence, there was no Dougherty county, that it has been laid out since; and that within its defined boundaries is the place at which the homicide was committed. It was in the county of Baker before. We think that it is sufficiently charged in the indictment that the offence was committed in the county of Dougherty. The defendant could not have been prosecuted in the county of Baker, at the time the indictment was found; for the territory on which the alleged offence was committed, was no longer in the county of Baker. The Constitution fixed the place of trial, for the benefit of defendants or parties accused, in the county where the offence was committed, as the locality at which he could most conveniently secure the attendance of witnesses. The change of the name of a county cannot operate to his detriment in any way, nor can the change of a county line.
[3.] The two first grounds in the motion for a new trial are disposed of by what we have said on the motion in arrest of judgment. But we will say additionally that the objection to the indictment ought to have been made by demurrer in writing, at the arraignment, before plea pleaded. It was too late afterwards. See case lately decided at Savannah, Thomasson vs. State of Georgia. Motion for a verdict for a defect in the indictment is, in effect, a demurrer.
[4.] This Court has held that under the Act of 1856, the presiding Judge is the trior of the competency of jurors. Reid vs. The State, 20. Ga. Rep. 688. The third ground in the motion for a new trial was therefore properly overruled.
The juror Robert Bears was examined as to his competency. His evidence was fully heard, and he was pronounced competent by the presiding Judge, who was the trior, whose judgment, we are not prepared to say, was such as to call for our interference. Costly vs. The State, 20. Ga. Rep. 629.
[5.] Daniel Harriett the juror was asked before the statuary oath was administered, in regard to his birth place, and he replied that he was born without the limits of the United States. It was no evidence of disqualification if he was not [557]*557born withm the limits of the Untied States.- If he was a free white male citizen of tire age of twenty-one years he had one of the qualifications of a juror. Acts of 1855 4- 1856, 229.
If a person be drawn from the jury-box, or summoned by the Sheriff as a tales juror, he is presumptively a qualified juror. The Sheriff is not to be presumed, to have returned a disqualified person; but if a person not qualified, shall be returned on a jury, he shall be discharged on the challenge •of either of the parties and proof thereof; or on the juror’s •own o^th. Cobb 546. The juror answered that he was born out of1 the limits of the United States; but that, did not overcome the presumption of qualification, for his return on the panel of the jury implied that, if he was born the subject of •another government, he had been naturalized here.
[6.] That the last panel put. on the prisoner, consisted of forty-seven instead of forty-eight jurors, does not entitle him to a new trial. The prisoner was entitled to a list of the jury, who are to be called over before they are put on him, and it is his own fault, if the juror does not answer to .his name, that he does not insist on his being brought into Court, or if that cannot.be done, that his place be supplied. In this case the prisoner lost nothing, for the juror was set aside for cause.
[7.] In the charge of the Court to the jury that “it made no difference, whether the owner of the slave furnished the instrument with which the killing took place or not,” there is no error. If the owner furnished the instrument to the •prisoner for the purpose of killing the slave, instead of exculpating him, or mitigating his offence, it would have made the master accessory to the crime. Almost every master who employs a manager furnishes him with an instrument for giving moderate correction, to be used if necessary for self-protection, but he never intends that it shall be used for inflicting cruel.and unreasonable punishment.
[8.] We think there was no error in admitting the evidence [558]*558of the prisoner’s striking Spencer. Spencer was the father of the girl who had been whipped. He witnessed the cruelty. She was then lying dead or dying, and the prisoner’s refusal to allow her father to go to her aid and relief under these circumstances, was certainly evidence of deeply seated malice against the girl he had beaten. It was proper for the-consideration of the jury. '
[9.] The counsel for the prisoner moved for a new trial on the ground that from the evidence, the jury could not, according to law, find a verdict of voluntary manslaughter. The jury were the judges of the law and the facts. In their finding they have passed upon both.
They must have found that the prisoner intended to kill the slave, and in this respect, the Court is not disposed to come to a different conclusion: but although the jury have "found, in the proof submitted to them, some circumstances which, under the law, they thought justified them in reducing the crime to manslaughter, we confess that it is difficult for us, under our construction of the law, to come to the same conclusion. The State does not and cannot move for a new trial. If we order a new trial, it must be on the ground that,, according to our judgment, the prisoner is guilty of murder. He was indicted for murder. The jury found him guilty of voluntary manslaughter. This finding acquits him of the charge of murder, and however contrary to law it may be., the Court cannot grant a new trial, so as to subject him to a trial for the offence of which the Court may believe him to be-guilty. The same section of the Penal Code which says that the jury shall be judges of the law and the fact, declares that on the acquittal of any defendant" or prisoner, no new trial shall, on any account, be granted by the Court. §309 Penal Code. Cobb 835.
[10.] The Penal Code does not repeal the Act of 1799, under which the defendant was put upon his trial. It repeals a great many acts specially mentioned therein, but that act is not among them. There is nothing in the Act of 1799, which. [559]*559militates against the Act of 1833, and the general words of repeal do not therefore affect its validity.
[11.] If the verdict be contrary to law, contrary to evidence, or contrary to law and evidence, a new trial ought to be granted, except that if the Court believe the accused is guilty of murder, and the jury,being judges of the law and the fact, have acquitted the prisoner of murder, with which he is charged, by finding him guilty of an offence of lower grade, the Court is expressly forbidden to grant a new trial in such case. I have looked in~ vain through the evidence for a single mitigating circumstance in this case to reduce the crime below the grade of murder. The prisoner had power over the slave. He exercised it most cruelly, inflicting on her a beating, from four hundred to a thousand blows, which showed in the language of the law “an abandoned and malignant heart.” We cannot think that he was, on any of the grounds, entitled to a new trial.
Judgment affirmed.